In a world of Brexit and president Trump, localism is on the rise in planning too, writes Martin Edwards
The power of local neighbourhoods to shape the future development of their area is now stronger than ever. The introduction of neighbourhood planning in the Localism Act 2011 provided local communities with a potentially powerful means of exerting control. Evidence suggests that neighbourhood plans are gaining in popularity and changes outlined in the Neighbourhood Planning Bill, currently before parliament, are likely to add impetus. A recent High Court decision in R (on the application of RLT Built Environment Ltd) v Cornwall Council [2016] EWHC 2817 (Admin); [2016] PLSCS 314 is likely to further encourage neighbourhood plan take-up.
Curbing St Ives holiday homes
The picturesque coastal town of St Ives has long been a magnet for second home owners. In 2011 some 25% of dwellings were not occupied by a resident household, a 67% increase from 2001. Such a high proportion of second homes potentially undermines the economic and social sustainability of the community. Consequently, St Ives Town Council applied to Cornwall Council (the local planning authority) and, in December 2013, was designated the qualifying body for the parish of St Ives for the purpose of preparing a neighbourhood plan.
The town council then produced the draft St Ives Neighbourhood Development Plan (“NDP”), which contained a policy, H2, which required new open-market housing to have a restriction, imposed through a condition or planning obligation, to ensure it was to be occupied only as a principal residence.
The draft NDP underwent pre-submission consultation between November 2014 and January 2015 and the draft was then submitted to Cornwall Council in March 2015, along with a sustainability appraisal as required by the SEA Directive and Regulations. In respect of alternatives for the use of future market housing, the sustainability appraisal examined just two options: policy H2 and doing nothing.
Cornwall Council then decided that the draft NDP complied with the relevant statutory requirements and put it out for consultation in June and July 2015. Concerns were expressed that policy H2 could depress the value of new market housing which could, in turn, make developments that had affordable housing requirements attached commercially unattractive. Others feared an impact on the tourism and leisure industries.
But in September 2015 Cornwall Council considered all the responses. An officer’s report also made clear that the draft NDP, and especially policy H2, needed to comply with human rights requirements. It was decided to proceed to independent examination. The draft NDP was examined on the basis of written representations, following which the independent examiner recommended that, subject to certain specified amendments, the draft NDP should proceed to a referendum.
However, the examiner’s report did not specifically deal with human rights issues. When judicial review proceedings were threatened on the basis that policy H2 contravened Article 8 rights, the examiner then produced, at Cornwall Council’s request, additional comments which concluded there was no evidence that the draft NDP did not comply with the Human Rights Act 1998. These comments were considered at a meeting in March 2016, after which a referendum was held on 5 May 2016. On a 47% turnout, 83% voted in favour of the NDP and thus Cornwall Council became bound to make the St Ives NDP in its final form.
The human rights challenge
Perhaps unsurprisingly, the claimant (a company specialising in residential development in Cornwall) challenged this decision. Originally eight grounds had been advanced, but by the time the case came before Hickinbottom J (as he then was) this had been reduced to three. In essence, it was said that the St Ives NDP included policies on future housing provision – including, in particular, residency requirements intended to limit second home ownership in the St Ives area – which were incompatible with Article 8 of the ECHR and also contrary to the requirements for strategic environmental assessment (“SEA”). In the end, two policies were in contention. In addition to policy H2, policy H3 was also challenged. This imposed a limit on the nature of new housing development that will be allowed once the figure of 1,100 new dwellings in the St Ives NDP area is met so that only affordable housing will ordinarily be permitted.
A robust ruling
The challenge was rejected by the court and it is difficult to fault the judgment. While the reasoning is technical and related to human rights and SEA arguments, the significance of this case is much wider.
First, it is noteworthy that the principle of the local residency restriction was not challenged, although it is hard to see how this could have been done, save on usual irrationality grounds. Arguably, where circumstances dictate, this approach could be replicated elsewhere or alternative forms of restriction imposed.
Second, the case illustrates the “light touch” approach to the procedure for preparing and examining these plans. Some might question whether a plan of this importance should be examined on the basis of written representations. It also shows how quickly it can be drawn up and adopted compared to local plans.
Third, this NDP stretches to more than 100 pages. Bearing in mind that the Local Plans Expert Group recommended more concise local plans, is the neighbourhood plan going to put back in much of the detail taken out of local plans?
It is clear neighbourhood plans are here to stay, providing communities with an effective means of taking back control over their area. In the aftermath of the EU referendum and the US presidential election, some may welcome this, but could it end up stymieing attempts to tackle the housing crisis? Come what may, developers cannot afford to take local communities for granted.
Martin Edwards is a barrister at Cornerstone Barristers
